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[2020] ZALCJHB 172
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Mosola and Others v Memla (J 1429/19) [2020] ZALCJHB 172 (7 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case
no: J 1429/19
MOEKETSI
MOSOLA
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
First
Applicant
Second
Applicant
DIALE
MOGASHOA ATTORNEYS
Third
Applicant
and
NOTOBEKO
MEMELA
Respondent
Decided:
In Chambers
Delivered
:
This judgment was handed down electronically by
circulation to the parties’ legal representatives by email,
publication on
the Labour Court website and release to SAFLII. The
date and time for handing-down is deemed to be 10h00 on 07 May
2020
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
PRINSLOO,
J
[1]
The Applicants applied for leave to appeal
against the judgment delivered on 29 November 2019 and the order as
to costs delivered
on 18 December 2019. I will deal with the two
judgments and the application for leave to appeal in respect of each
in turn.
[2]
The Applicants also filed an application
for condonation for the late filing of the written submissions filed
in terms of Rule 30(3A)
of the Labour Court Rules.
[3]
The Respondent filed submissions in
opposition to the application for leave to appeal on 16 March 2020.
[4]
The handing down of this judgment has
unfortunately been delayed by the national lock down due to Covid-19
The
judgment of 29 November 2019
[5]
On 29 November 2019 this Court delivered a
judgment wherein
inter alia
Mr
Ntsimane was found guilty of being in contempt of a
Court
order dated 20 June 2019 by suspending the Respondent and by keeping
her suspended.
[6]
On 10 January 2020 the Applicants filed an
application for leave to appeal against the whole of the judgment and
orders of the judgment
delivered on 29 November 2019.
[7]
Rule 30(2) of the Labour Court Rules
provides that an application for leave to appeal is to be made within
15 days of the date of
the judgment against which leave to appeal is
sought.
In casu
the
judgment was handed down on 29 November 2019 and the prescribed 15
days to file an application for leave to appeal expired on
20
December 2019.
[8]
The Applicants only filed an application
for leave to appeal against the judgment delivered on 29 November
2019 on 10 January 2020,
evidently outside the prescribed period of
15 days.
[9]
Rule 12 provides that this Court may, on
good cause shown, condone the non-compliance with any prescribed
period. Where a party
failed to comply with a prescribed time period,
such party may apply on notice for an order to condone non-compliance
and such
an application has to be brought in terms of the provisions
of Rule 7. In compliance with Rule 7, there has to be a notice of
motion
setting out the relief sought and the application must be
supported by affidavit, setting out the material facts on which the
application
is based.
Rule 30(2) also
provides for an extension of the 15-day period, on good cause shown.
[10]
It is trite that an application for
condonation must be brought as soon as it is necessary to bring such
application, and this fact
had to be known to the Applicants on 10
January 2020, when the application for leave to appeal was filed
outside the prescribed
period.
[11]
However, the Applicants failed to file an
application for condonation, setting out the material facts and
providing an explanation
to this Court as to why the application for
leave to appeal was filed late.
[12]
Instead the Applicants filed an application
for condonation for the late filing of their submissions in the
application for leave
to appeal. In my view the application for
condonation for the late filing of submissions in respect of the
judgment handed down
on 29 November 2019 is irrelevant as the
application for leave to appeal was late and no condonation is sought
for the late filing
of the application for leave to appeal. This
Court cannot condone the late filing of submissions in respect of an
application for
leave to appeal that was filed late and for which no
condonation is sought.
[13]
The
failure to comply with the prescribed period goes to the issue of
jurisdiction.
In
SA
Transport and Allied Workers Union v Tokiso Dispute Settlement and
others
[1]
the Labour Appeal Court (LAC) confirmed that where a party is out of
time and has to take the jurisdictional step to apply for
condonation
but failed to do so, a court cannot come to that party’s
assistance. The LAC held that in the absence of an application
for
condonation, the Court cannot assist the party.
[14]
The same principle applies
in
casu
where the reality is that the
Applicants had to apply for condonation for their failure to comply
with a prescribed period to file
an application for leave to appeal,
but failed to do that. It follows that absent an application for
condonation this Court has
no jurisdiction and cannot come to the
Applicants’ assistance.
[15]
In summary: The Rules of this Court require
that an application for leave to appeal must be made within 15 days
of the date of the
judgment against which leave to appeal is sought,
except that the Court may, on good cause shown, extend that period.
The present application should have been filed by
20 December 2019 and as it was not accompanied by an application
seeking condonation
for the Applicants’ failure to file the
application within the prescribed time limit, this Court has no
jurisdiction to consider
the application.
The
judgment of 18 December 2019
[16]
On 18 December 2019, this Court ordered
Diale Mogashoa Attorneys to pay the Respondent’s costs in the
contempt of Court application
de bonis
propriis
on a scale as between attorney
and client.
[17]
On 10 January 2020, the Applicants filed an
application for leave to appeal against order as to costs delivered
on 18 December 2019.
The application for leave to appeal in respect
of the order of 18 December 2019 has been filed in time and will be
considered.
I am also inclined to grant condonation for the late
filing of submissions in respect of the application for leave to
appeal against
the order of 18 December 2019.
[18]
It is trite that an applicant in an
application for leave to appeal must convince the court
a
quo
that it has reasonable prospects of
success on appeal. Appeals should be limited to matters where there
is a reasonable prospect
that the factual matrix could receive a
different treatment or where there is some legitimate dispute on the
law.
[19]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[2]
this Court confirmed that the test applicable in applications for
leave to appeal is stringent and held as follows:
“
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. As the respondents observe, the use of the
word “would” in s17(1)(a)(i) are indicative
of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that there was a reasonable
prospect
that another court
might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28
July 2015). Further, this is not a test to be applied lightly –
the Labour Appeal Court has recently had occasion
to observe that
this court ought to be cautious when leave to appeal is granted, as
should the Labour Appeal Court when petitions
are granted. The
statutory imperative of the expeditious resolution of labour disputes
necessarily requires that appeals be limited
to those matters in
which there is a reasonable prospect that the factual matrix could
receive a different treatment or where there
is some legitimate
dispute on the law (See the judgment by Davis JA in
Martin
and East (Pty) Ltd v NUM
(2014) 35 ILJ
2399 (LAC), and also
Kruger v S
2014 (1) SACR 369
(SCA) and the ruling by Steenkamp J in
Oasys
Innovations (Pty) Ltd v Henning and another
(C 536/15, 6 November 2015)”.
[20]
It is within this context that I have to
consider the application for leave to appeal against the order of 18
December 2019.
[21]
I have perused the application for leave to
appeal and the grounds for appeal raised therein. Apart from the
first paragraph in
the application for leave to appeal which states
that the Applicants are applying for leave to appeal against the cost
order, there
is not a single ground for appeal against the cost order
of 18 December 2019 raised in the application.
[22]
I have further perused the submissions
filed by the Applicants in support of the application for leave to
appeal. Not a single submission
is made in support of the Applicants’
appeal against the cost order.
[23]
The Applicants must convince this Court
that they have reasonable prospects of success on appeal in respect
of the cost order that
this Court granted. They have dismally failed
to do so. Not a single submission had been made to attack this
Court’s order
on costs and not even a remote case had been made
out to support an application to appeal such an order. Absent any
ground for
appeal or any submission to support that, this Court
cannot and should not grant leave to appeal.
[24]
There is simply no merit in the application
for leave to appeal against the order of 18 December 2019.
[25]
In the premises, I make the following
order:
Order
1.
The application for leave to appeal is
dismissed with costs.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
[1]
(2015)
36 ILJ 1841 (LAC).
[2]
(2016)
37 ILJ 1485 (LC) at para 3.